Guest Blog: The Building Safety Act – The journey so far by Kizzy Augustin

Kizzy Augustin: How can my business stay on the right side of the law under the Building Safety Act?

By Kizzy Augustin, Partner (Health & Safety, Environmental and Fire) at Mishcon De Reya

For a while now, businesses in the construction industry have been coming to terms with what the Building Safety Act (BSA) means for their day-to-day operations. As with any law that marks such a significant industry shift, getting our heads around every aspect doesn’t happen overnight. No matter how much preparation is done, the nature of such a huge piece of building legislation means questions often arise along the way, as businesses try to navigate this new regulatory landscape and wait for legal waters to be tested and precedents set.

As a legal professional in the field of health and safety, I’ve been closely monitoring the Building Safety Act’s development since long before certain parts came into force in April 2023. In this blog, I want to discuss some of the complexities that have come to light during the Building Safety Act’s first year, and share insights and practical advice to help construction firms stay on the right side of the law and meet the stringent safety standards it sets out.

What are the challenges and developments with the Building Safety Act?

First, let’s be honest – since the Building Safety Act came into effect, both the legal and construction communities have been on a steep learning curve. Understanding the full scope and implications of the Building Safety Act has taken some time.

The Building Safety Act’s scope is intentionally broad. As a result, the journey towards full compliance is still unfolding. Even the regulator is in the process of understanding how the Act will be enforced and what it will mean for all parties involved.

Both identified and potential duty holders are navigating uncharted waters. One of the primary challenges we face is the extensive requirement for gathering information, a theme that runs throughout the Building Safety Act. Whether it’s at the design stage, feeding into the golden thread, completing certification documents, applying for permissions, or compiling safety cases, the emphasis on collecting detailed information is clear.

At various stages, multiple individuals and entities will need to contribute to this information-gathering process. Even the Building Safety Regulator (BSR) is currently determining what constitutes best practice. They are not yet providing definitive guidance on what a ‘good’ approval or rejection looks like, but instead they are actively engaging in a series of inquiries with Building Safety Act duty holders. They are visiting priority buildings and asking pertinent questions: How was the report compiled? Which consultants were involved? How much detail was provided for structural safety?

These questions are part of a broader effort to understand current practices and establish benchmarks for future guidance. However, we are still in the early stages of this process. The Building Safety Regulator’s (BSR) ongoing consultations and eventual guidance will be crucial in defining clear standards and expectations. Until then, the construction industry must continue to proactively adapt and respond to the Building Safety Act’s evolving requirements.

In terms of how disputes or uncertainties will be resolved, I foresee progression involving both the Building Safety regulator and other authorities, such as the Department for Levelling Up, Housing and Communities (DLUHC). I have personally expressed concerns about how the BSR might be held accountable. In discussions with those overseeing the BSR, assurances have been made that DLUHC will ensure accountability. If issues arise with the regulator, parties can escalate them to DLUHC for a resolution.

In addition, we are likely to see legal cases shaping the implementation of the Building Safety Act. While we are already starting to observe civil cases related to remediation orders and building liability orders progressing through the courts, criminal liability is an area yet to take full shape. I anticipate that in around six months, once the Building Safety regulator has moved beyond the initial phase of reviewing safety case reports, we will start to see more criminal cases being addressed.

Who is accountable under the Building Safety Act?

When it comes to accountability, the Building Safety Act purposely casts a wide net. This is good, because it means more individuals and entities can be held responsible for a building’s compliance. Yet a lack of clarity around who might be an accountable person does cause some confusion, from a legal standpoint.

While the Building Safety Act generally places accountability at the top, who have the necessary level of ‘control’, the specifics can vary significantly. For example, resident management companies sometimes assume the role of the principal accountable person. This has led to some confusion on the responsibilities of other duty holders under the Building Safety Act, particularly around repairing obligations. In fact, there is ongoing debate about whether managing agents, facilities managers or other contracted individuals could also be considered ‘accountable persons,’ due to their repairing obligations under contracts or agreements, and not just those that are parties to a lease agreement. The legal wording in certain areas of the Building Safety Act does prove to be somewhat ambiguous. For example, when the Act refers to ‘enactments’, these could be interpreted to include a broader range of people with repairing obligations under various statutes, such as the Fire Safety Order.

Understandably, this ambiguity has caused some nervousness within the industry. The implication is that it could potentially broaden the scope of who is considered an accountable person. Nevertheless, recent discussions in the lead up to the changes suggested in the Leasehold and Freehold Reform Bill suggest the government is aware of this issue, acknowledging the possibility that property managers could be deemed accountable persons in certain circumstances. This clarification is crucial so that parties understand their responsibilities under the Building Safety Act.

How can businesses stay ahead of the Building Safety Act?

As the understanding of the Building Safety Act continues to evolve, the most important advice I can give is that firms must continue to be proactive.

The emphasis on culture and behaviours under the Building Safety Act represents a significant change from previous regulatory approaches. It’s about ingraining safety considerations into every aspect of operations.

This should not just be a box-ticking exercise, but more of a fundamental role in how construction projects are conceived, executed and maintained. This cultural shift is commendable, aiming to change construction industry practices for the better. Now the Building Safety Act legislation is in place, the onus is on industry stakeholders to adopt actionable strategies, tailored to their specific contexts.

The Building Safety Regulator’s role has similarly evolved. Rather than offering continuous guidance, they now expect Building Safety Act duty holders to proactively seek out information and implement robust compliance measures. This approach is designed to promote self-regulation and accountability within the industry. It’s a departure from a pure oversight model, towards addressing compliance failures firmly and swiftly.

When deciding penalties, the courts will consider factors such as the level of culpability, the seriousness of harm and risk, and the efforts taken for risk mitigation – as they do with health and safety or environmental breaches.

By integrating risk awareness into operational processes and following established guidance, businesses can limit their exposure and demonstrate a commitment to best practice.

What are the key measures for construction firms to ensure compliance?

How, then, can you be proactive? There’s a number of important steps you need to take:

		Understand the impact of overlapping, existing safety regimes and seek to ensure compliance with all applicable legislation
		Understand and fulfil roles under the Building Safety Act, focusing on building regulations and building safety risks
		Demonstrate competence through recognised standards, all while maintaining documentation
		Stay informed and proactive about the evolving regulatory landscape and industry best practice

To begin with, I’d recommend starting with the basics, and making sure you first comply with existing legislation. It’s easy to get caught up in the excitement of the Building Safety Act and its new requirements, but the first step should be confirming you adhere to current obligations like the Construction (Design and Management) Regulations (CDM), the Fire Safety Order and – if applicable – the Health and Safety at Work Act. All of these should be an easy win – hopefully, many are already familiar with the relevant regulatory regimes.

Once existing obligations are in order, firms should then turn their attention to the Building Safety Act. Roles under the Act like principal designer and principal contractor are modelled after CDM regulations, (albeit one is more focused on compliance with the building regulations as opposed to monitoring project safety). This means taking reasonable measures to ensure cooperation with clients, coordinating design work and ensuring it aligns with building regulations. This approach, while straightforward, requires time and careful consideration, especially for principal designers and principal contractors.

Next, firms should assess and demonstrate their competence. This involves referencing the relevant PAS documents, which provide comprehensive guidelines on illustrating competence in the required areas. Those managing fire safety within buildings must also ensure they’re aware of overlapping obligations.

Does the Building Safety Act apply to me?

Finally, there’s still a great deal of uncertainty within certain groups in the construction industry about whether the Building Safety Act applies to them. I’d advise this underscores the importance of proactive compliance.

In today’s digital age, there is a wealth of resources available—from online information to industry group discussions and forums—that can help clarify your obligations. If you’re unsure, find out.

Representatives of the BSR have anecdotally underscored this shift in approach, emphasising that enforcement measures like notices and prosecutions will be swiftly applied where necessary. This aims to not only ensure compliance, but also foster a culture of accountability and continuous improvement. The BSR’s extensive powers include the ability to prosecute and issue notices over extended periods, highlighting their capability and determination to uphold building safety standards.

Ultimately, it’s down to you to navigate these regulatory changes effectively – but we’re all on this journey together. Take a proactive approach, use the tools and resources available to you, and reach out to experts and industry peers. If you adopt this stance, then you’re playing your part in contributing to a safer and more compliant construction industry.

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